State Court of Fulton County
`**E-FILED**
`18EV005227
`6/12/2019 3:34 PM
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`LeNora Ponzo, Clerk
`Civil Division
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`IN THE STATE COURT OF FULTON COUNTY
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`STATE OF GEORGIA
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`m P
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`laintiff,
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`V.
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`CIVIL ACTION NO. 18EV005227
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`MAG MUTUAL INSURANCE COMPANY,
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`Defendant.
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`ORDER ON DEFENDANT’S MOTION TO DISMISS AND/OR
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`MOTION FOR JUDGMENT ON THE PLEADINGS
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`This matter is before the Court on Defendant MagMutual Insurance Company’s Motion
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`to Dismiss and/or Motion for Judgment on the Pleadings and for Attorney’s Fees. Having
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`considered the record, briefs of counsel, and relevant
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`law, Defendant’s Motion is hereby
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`GRANTED with regard to Defendant’s Motion for Judgment on the Pleadings and DENIED
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`with regard to Defendant’s petition for attomey’s fees pursuant to O.C.G.A. § 9—15—14 for the
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`reasons that follow.
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`I.
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`BACKGROUND
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`Plaintiff Premier Eye Care Associates, PC, is a professional corporation owned and
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`operated by Dr. Linda Szekeresh, an ophthalmologic surgeon who treats patients with sight
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`disorders. Plaintiff was an insured of Defendant when a water pipe burst in a pizza restaurant
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`(“Blue Jeans”) located above and in the same building as Plaintiff. Water traveled down into
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`Plaintiff’s office below and caused damage to Plaintiff’s property, including but not limited to
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`medical equipment.
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`On May 8, 2013, Plaintiff purchased a Business Owners’ Policy from Defendant, Policy
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`Number BOP 0004109 08 (“the Policy”). Plaintiff notified Defendant of the incident at its place
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`of business hours after the flooding occurred. Defendant began issuing payments to Plaintiff
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`seven weeks after the date of the incident. Defendant paid Plaintiff $221,485.68 between
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`November 15, 2013, and November 25, 2013, for the loss of personal property and
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`reimbursement of computer expenses and lost business income. Twelve months later, Defendant
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`issued to Plaintiff another payment of $118,949.70 for lost business. Plaintiff contended that it
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`was entitled to additional business interruption payments and, in an effort to resolve that dispute,
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`requested mediation with Defendant. The parties mediated Plaintiff’s claims in January 2015 but
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`did not reach an agreement. On February 10, 2017, Plaintiff filed a case in the Superior Court of
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`Fulton County. Plaintiff dismissed that case without prejudice on or about July 27, 2018.
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`Plaintiff filed this case on October 30, 2018 pursuant to the renewal statute, O.C.G.A. §
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`9-2-61, seeking to recover additional monies under theories of breach of contract and bad faith
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`pursuant to O.C.G.A. § 33-4-6. Additionally, Plaintiff seeks punitive damages and attorneys’
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`fees pursuant to O.C.G.A. § 13-6-11. Defendant, however, contends that Plaintiff’s claims
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`against it are expressly time-barred by the limitation on actions set forth in the Policy at Section
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`I(E)4 “Legal Action Against Us.” Plaintiff counters that the current action is not barred as
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`Defendant allegedly waived the two-year limitation period because its investigations and
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`negotiations led Plaintiff to reasonably believe that strict compliance of the limitation provision
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`would not be insisted upon. Plaintiff also posits that Defendant waived the time limitation
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`provision in the insurance contract when Defendant implicitly admitted liability on the policy
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`and when Defendant engaged in mediation with Plaintiff after expiration of the two-year
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`limitation period. Finally, Plaintiff asserts that Defendant’s alleged non-compliance with the
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`Policy negates the limitation time bar.
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`II.
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`ANALYSIS
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`Under Georgia law, a motion to dismiss for failure to state a claim upon which relief may
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`be granted should not be sustained unless:
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`(I) the allegations of the complaint disclose with certainty that the claimant
`would not be entitled to relief under any state of provable facts asserted in
`support thereof; and
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`(2) the movant establishes that the claimant could not possibly introduce
`evidence within the framework of the complaint sufficient to warrant a grant
`of the relief sought.
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`Anderson V. Flake, 267 Ga. 498, 501, (1997).
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`“If, within the framework of the complaint,
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`evidence may be introduced which will sustain a grant of the relief sought by the claimant, the
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`complaint is sufficient and a motion to dismiss should be denied.” Li. “In deciding a motion to
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`dismiss, all pleadings are to be construed most favorably to the party who filed them, and all
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`doubts regarding such pleadings must be resolved in the filing party’s favor.” I_d.
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`With regard to the time frame within which Plaintiff may bring a legal action against
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`Defendant, the Policy states in pertinent part:
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`No one may bring a legal action against us [MagMutual] under this insurance
`unless:
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`a. There has been full compliance with all of the terms of this insurance; and
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`b. The action is brought within 2 years after the date on which the direct
`physical loss or damage occurred.
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`Policy, p. 17 (Section I(E)4).
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`Limitation provisions like the one contained in the Policy are valid and enforceable in
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`Georgia.
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`See Gen. Ins. Co. of Am. v. Lee Chocolate Co., 97 Ga. App. 588, 590 (1958)
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`(enforcing similar one—year limitation provision); Parks v. State Farm Gen. Ins. Co., 238 Ga.
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`App. 814, 816 (1999) (“Parks admitted in response to State Farm’s request for admission that he
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`did not file this action within one year of the date of damage. The one-year limitation period is
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`valid and enforceable, and the trial court correctly granted summary judgment on this basis”).
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`However, a limitation period may be obviated where the conduct of the insurer would “lull the
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`claimant into a false sense of security so as constitute a waiver of the limitation defense.” Q
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`Farm Bureau Mut. Ins. Co. v. Pawlowski, Ga. App. 183, 184 (1997) (punctuation and footnote
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`omitted); accord Morrill v. Cotton States Mutual Ins. Co., 293 Ga. App. 259, 263 (2008). A
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`waiver may be inferred from an insurer’s actions, conduct, or course of dealings when all of the
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`relevant facts, when considered together, amount to an intentional relinquishment of a known
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`right. Forsyth County v. Waterscape Servs., LLC, 303 Ga. App. 623, 630 (2010).
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`In the present suit, Plaintiff asserts that Defendant’s actions, conduct, and course of
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`dealings amounts to a waiver of the limitation provision. Plaintiff points to the fact that
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`Defendant never denied liability as evidenced by making payments under the policy in question
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`and by orally agreeing to consolidate its subrogation case against Blue Jeans with the then
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`current suit that Plaintiff had against Blue Jeans. At the very least, argues Plaintiff, Defendant’s
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`actions rise to the level of being an issue of fact for a jury to determine. The Court disagrees.
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`Plaintiff presents no support for the assertion that an insurer’s act of making payments to a
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`claimant, in this case payments that Plaintiff describes as “slow” and “inadequate,” stands as an
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`implicit admission of liability.
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`Additionally, negotiation for settlement, unsuccessfully
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`accomplished, is not that type of conduct designed to lull the claimant into a false sense of
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`security so as to constitute a waiver of the limitation defense. Morrill, supra, at 263 (2008).
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`The record shows that in January of 2015, mediation between the parties took place
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`resulting in no agreement.
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`Importantly, the record is devoid of evidence showing that Plaintiff
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`and Defendant engaged in any type of negotiations after the breakdown of that mediation session
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`until approximately two years later (January 2017). Nor is there any evidence that Defendant
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`continued making payments after the failed mediation session. Plaintiff had until September 19,
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`2015 to file an action against Defendant.
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`It failed to do so and did not initially file suit in the
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`Superior Court of Fulton County against Defendant until February of 2017. Thus, the totality of
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`the record mandates a finding that Plaintiff 5 claims are time-barred.
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`Defendant has also moved the Court for an award of litigation expenses and attorney fees
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`pursuant to O.C.G.A. § 9-15-14. Under O.C.G.A. § 9—15-l4(a), the movant must prove and the
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`Court must find that a party “has asserted a claim, defense, or other position with respect to
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`which there existed such a complete absence of any justiciable issue of law or fact that it could
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`not be reasonably believed that a court would accept the asserted claim, defense, or other
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`position.” Under O.C.G.A. § 9-15-l4(b), the movant must demonstrate “that an attorney or
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`party brought or defended an action, or any part thereof, that lacked substantial justification or
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`that the action, or any part thereof, was interposed for delay or harassment, or
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`that an attorney
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`or party unnecessarily expanded the proceeding by other improper conduct, including, but not
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`limited to, abuses of discovery procedures...” The Court finds, on the record before it, that
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`Defendant has failed to demonstrate sanctionable conduct on Plaintiffs part under either
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`subsection (a) or (b) of O.C.G.A. § 9-15-14. Consequently,
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`the Court declines to grant
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`Defendant’s petition for O.C.G.A. § 9-15-14 attomey’s fees.
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`III.
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`CONCLUSION
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`For the foregoing reasons, Defendant’s Motion to Dismiss and Motion for Judgment on
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`the Pleadings, and for Attorneys’ Fees is hereby GRANTED IN PART AND DENIED IN
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`PART. The Motion is GRANTED with respect to Defendant’s assertion that Plaintiff’ s claims
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`are time-barred. The Motion is DENIED with respect to Defendant’s petition for attorneys’ fees
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`pursuant to O.C.G.A. § 9-15-14.
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`SO ORDERED, this 12th day of June, 2019.
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`éé‘é
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`Judge Eric A. Richardson
`State Court of Fulton County
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`Copies to:
`Counsel of record and/0r pro se parties Via eFileGA
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